Barker Painting Co. v. BROTHERHOOD OF PAINTERS, ETC.

• Decision Date: 02 October 1926
• Docket Number: No. 3455.,3455.
• Parties: BARKER PAINTING CO. v. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA et al.
• Court: U.S. Court of Appeals — Third Circuit

15 F.2d 16 (1926)

BARKER PAINTING CO. v. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPERHANGERS OF AMERICA et al.

No. 3455.

Circuit Court of Appeals, Third Circuit.

October 2, 1926.

Henry S. Drinker, Jr., and Eric A. McCouch, both of Philadelphia, Pa., for appellant.

William A. Gray, of Philadelphia, Pa., for appellees.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and GIBSON, District Judge.

WOOLLEY, Circuit Judge.

This appeal is from a decree of the District Court refusing a preliminary injunction to restrain the enforcement of two labor union rules alleged to be unlawful because unjustly discriminatory and in restraint of trade and interstate commerce.

It will not be necessary to describe the relation of the many respondents (appellees) beyond saying that the Brotherhood of Painters, Decorators, and Paperhangers extends throughout the United States. It is divided into district councils in various regions, composed of delegates from local unions, and these in turn have their own subdivisions. We shall, for convenience, refer to the group as "the union."

The rules here in question (articles 132 and 133 of the Union constitution) require that an employer of union labor, residing in one locality and doing work in another locality, shall select not less than fifty per cent. of his men from members of the union where the work is being done. They then require that his union employees, whether coming from a distant locality or residing in the locality of the work, shall demand the shorter work day and the higher wage scale prevailing in either locality.

These rules, as interpreted and enforced by the union, may be illustrated by the facts in this case, as follows: The Barker Painting Company (complainant below and appellant here), a New York corporation with headquarters in New York City, is engaged throughout the United States in the business of contracting painter. When it secures a contract, its practice is to send a foreman superintendent to the locality where the work is to be done. There he employs local painters — always members of the union — and proceeds with the work. On this occasion the complainant secured a contract for painting a building in Philadelphia, intending to meet the Union rules as to wages and hours of work in that district. The Philadelphia scale is $1.00 per hour, an 8-hour day and a 5½-day week. The New York scale is $1.31 per hour, an 8-hour day and a 5-day week. The complainant's employees resident in Philadelphia, acting under pressure from their union, refused to work in Philadelphia at the Philadelphia scale of wages and hours and demanded the New York scale as to both. Hence this suit.

The learned trial court refused an injunction restraining enforcement of these rules, basing its judgment on several decisions of state courts, notably the Court of Errors and Appeals of New Jersey in New Jersey Painting Company v. Local No. 26 Brotherhood of Painters, 96 N. J. Eq. 632, 126 A. 399; the Superior Court of Rhode Island in George A. Douglas & Bro., Inc., v. Clarence Mallette et al., not reported; and the Court of Common Pleas No. 1, Philadelphia County, Pennsylvania, in H. Newton Marshal Company v. Brotherhood of Painters, etc., not reported. Opinions in these unreported cases were before us.

Opposed to these three decisions by state courts are decisions of three courts of the United States — Hass v. Local Union No. 17 Brotherhood of Painters (D. C.) 300 F. 894; Barker Painting Company v. Brotherhood of Painters (Supreme Court of the District of Columbia), not reported; and Barker Painting Co. v. Local No. 734 (District Court for the District of New Jersey) not reported.

All the cited state decisions are against injunctions; all the federal decisions favor injunctions. The learned trial court was inclined to the reasoning of the state decisions; and so are we, not because the respondents have shown that the rules are lawful, but, rather, because the complainant has failed to show that they are unlawful.

The theory on which the federal decisions were rendered is that the rules impose on the outside contractor an unjust discrimination and, in consequence, inflict an injury on the public in that they operate unfairly to restrain trade. The theory on which the state cases were decided initially, and necessarily, includes an admission that the rules work discrimination in some degree against the outside contractor, but it recognizes that it is not every discrimination that is unlawful. The courts in the latter cases restate what is now settled law, that employers have no vested interest in the labor of workers and that their workers have a right, individually and collectively, to lay down terms on which they will sell their labor for the highest return they can obtain, and when not satisfied, they have a right to strike. So long as they do this in their own interest, not with the purpose of assailing others, and do it in a manner not in itself unlawful, the courts will not interfere. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Mayer v. Journeymen Stonecutters Ass'n, 47 N. J. Eq. 531, 20 A. 492; My Maryland Lodge v. Adt, 100 Md. 238, 249, 59 A. 721, 68 L. R. A. 752; Bessert v. Dhuy, 221 N. Y. 342, 117 N. E. 582, Ann. Cas. 1918D, 661; National Protective Ass'n v. Cummings, 170 N. Y. 315, 321, 63 N. E. 369, 58 L. R. A. 135, 88 Am. St. Rep. 648; Toledo, etc., R. R. Co. v. Pennsylvania Co. (C. C.) 54 F. 730, 19 L. R. A. 387.

Insistently urging that the rules in question and the manner of their enforcement by the Union are unjustly discriminatory against the complainant and all other employers similarly situated and operate to the injury of the public (United States v. Addystone Pipe Co., 85 F. 271, 282, 29 C. C. A. 141, 46 L. R. A. 122; Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 66, 22 L. Ed. 315), the complainant further urges that the rules are not made for any justifiable or, indeed, for any visible benefit to the laborers themselves except that thereby they may arbitrarily obtain higher wages in the given circumstances and that no ground or reason has even been intimated by the Union or its counsel justifying them. In this proceeding the burden of justifying the rules does not rest on the respondents; it is for the complainant, who pressed for a preliminary injunction before the answer was filed, to establish that the rules are unlawful by evidence sufficient to invoke that extraordinary remedy. While it is true the defendant union has not pointed out specific reasons for the rules, there is, perhaps, enough in the case to warrant these observations:

The Union...